Were We Smarter About Copyright Laws 100 Years Ago?

from the almost-certainly dept

Tue, Jul 21st 2009 4:45am — Mike Masnick

A few months back, I wrote about attending an absolutely fascinating one-day conference all about the 1909 Copyright Act, which hasn't been the law of the land in about 33 years. And, yet, one thing became clear throughout the session: there was plenty in that law that made a lot more sense than what we have today. There were a few "old timers" who complained about the way it was before 1976, but their complaints were a lot more about the specific implementations (and, at times, oddly, a massive desire to keep content out of the public domain, which they found to be a fault of the 1909 Act). Law professor James Boyle has been looking over the legislative history that resulted in the 1909 Act and notes that we seemed to be a lot smarter about copyright law back then. Among the points raised: the recording industry was actually the one defending new technologies against being covered by copyright, noting that the innovation itself (in this case, the player piano) didn't actually take away anything from artists, but helped promote the goods that they sold (in this case, sheet music). But, what struck Boyle most was that unlike today, the legislators writing the law seemed to actually understand the real pros and cons of extending copyright, and didn't get sucked into misleading arguments about how copyright was "property." Even more amazing, legislators didn't automatically think that "more" copyright was a good thing -- but that it had potentially some benefits and some downsides. These days, of course, politicians have been taught that copyright is a universal good, and they rarely seem willing to recognize the potential downsides (or, even worse, the actual evidence of downsides) to extending copyright so far.

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Filed Under: 1909, copyright, copyright law

40 Comments

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Jerry in Detroit, 21 Jul 2009 @ 5:00am

Intellectual Property
I've often thought the quick answer to "intellectual property" is to tax it. They're taxing everything else. Why should this be omitted? I suspect a fairly modest tax would see a sudden surge in the public domain.
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- Derek Kerton (profile), 21 Jul 2009 @ 10:56am
  
  Re: Intellectual Property
  Hmm. Interesting. That certainly is consistent with the Pro-IP camp's position that IP is "real property".
  
  Well, I'm paying property taxes on the assessed value of my real property. Why not apply that logic consistently?
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  - Anonymous Coward, 21 Jul 2009 @ 11:39am
    
    Re: Re: Intellectual Property
    IP is treated under US tax law as a capital asset, one that can be depreciated while retained and subject to capital gains when sold.
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    - Anonymous Coward, 21 Jul 2009 @ 1:34pm
      
      Re: Re: Re: Intellectual Property
      IP is treated under US tax law as a capital asset, one that can be depreciated while retained and subject to capital gains when sold.
      
      OK, that too then. Both taxes should be paid.
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      - Anonymous Coward, 21 Jul 2009 @ 9:19pm
        
        Re: Re: Re: Re: Intellectual Property
        "Taxes" are paid at three distinct times during the term of a patent. The failure to pay one causes the patent to lapse, somewhat like the failure to pay property taxes on your home causes your title to lapse.
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        Marcel de Jong (profile), 22 Jul 2009 @ 1:47am
        
        Re: Re: Re: Re: Re: Intellectual Property
        Yes, but IP isn't always a patent.
        Copyright is IP too.
        So basically the labels should start paying taxes for their copyright. Let's see how long it'll take before they want none of it anymore.
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- Anonymous Coward, 21 Jul 2009 @ 7:39pm
  
  Re: Intellectual Property
  I've often thought the quick answer to "intellectual property" is to tax it. They're taxing everything else. Why should this be omitted? I suspect a fairly modest tax would see a sudden surge in the public domain.
  
  Good idea actually.
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Diaggen, 21 Jul 2009 @ 5:20am

I think this has to do with tech and education
Technology at the time was simpler. I think it was easier for legislators to understand. Media technolgy was easier to explain and demonstrate. I also think the legislators of the period were better educated as a whole and had more common sense.
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- aguywhoneedstenbucks (profile), 21 Jul 2009 @ 7:22am
  
  Re: I think this has to do with tech and education
  Not just better educated--there were less career politicians, therefore more people who were not educated only in the field of law, but in engineering or medicine, or one of a hundred other fields.
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  - Derek Kerton (profile), 21 Jul 2009 @ 10:58am
    
    Re: Re: I think this has to do with tech and education
    And probably fewer lobbyists, entrenched funders of campaigns, and protracted mis-education campaigns.
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- Anonymous Coward, 21 Jul 2009 @ 1:36pm
  
  Re: I think this has to do with tech and education
  Technology at the time was simpler.
  
  But the underlying principles remain the same.
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Steve Steidle (profile), 21 Jul 2009 @ 5:45am

Just another example....
I would vote this is just another example of the ever-expanding government continuing to over-complicate and over-extend many of the laws they have passed. We just need less government regulation from smaller, sleeker, more efficient central government. A giant hulking wreck of a government like the one we currently have just isn't capable of providing accurate, timely solutions in the rapidly changing world we live in today.
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- dorp, 21 Jul 2009 @ 9:13am
  
  Re: Just another example....
  I would vote this is just another example of the ever-expanding government continuing to over-complicate and over-extend many of the laws they have passed.
  
  Another example of a blind lemming following his favorite radio host. The government is creating all these new laws at the behest of the various industries that our dear representatives are beholden to. Get the industry and politicians out of their common bed, and you will have your smaller government.
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reboog711 (profile), 21 Jul 2009 @ 6:06am

Less Lobbiests?
Perhaps there were just less lobbyists spreading propoganda? And Politicians had to read bills they were about to pass and consider the implications?

That seems very different than today
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- Dark Helmet (profile), 21 Jul 2009 @ 6:37am
  
  Re: Less Lobbiests?
  "Perhaps there were just less lobbyists spreading propoganda? And Politicians had to read bills they were about to pass and consider the implications?"
  
  That's part of it. The other part is that there has been a consolidation of business and finances since 1909. The largest businesses have grown larger. A larger percentage of the people today work for either the government or the largest 5% of businesses. Hell, even most of the smaller corporations are subsidiaries of larger companies, or else have members of those larger companies representing them on the board of directors or advisors.
  
  You couple that with the fact that today's politicians almost universally have big business ties (in fact, they don't even try to hide it anymore), and what you're left with is a govt./big business vs. the public mentality.
  
  Amazing how the copyright extension vs. anti-maximalist sides of the debate seem to fall closely down those lines, no?
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  - ChurchHatesTucker (profile), 21 Jul 2009 @ 8:00am
    
    Re: Re: Less Lobbiests?
    "...today's politicians almost universally have big business ties (in fact, they don't even try to hide it anymore)..."
    
    Lessig has it right: you've got to go to the source problem, corruption.
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    - Dark Helmet (profile), 21 Jul 2009 @ 8:05am
      
      Re: Re: Re: Less Lobbiests?
      "Lessig has it right: you've got to go to the source problem, corruption."
      
      Source of the problem = bank representatives sitting on board of directors.
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  - mcs, 21 Jul 2009 @ 8:20am
    
    Re: Re: Less Lobbiests?
    What are you trying to say here?
    
    Could you elaborate your analogy of how big business vs public mentality has to do with copyright extension vs anti-maximalist(minimalist?)?
    
    Your post reads more like an anti-capitalist rant than that of a comment to Mike's post. Also can I get a reference for the figures you quoted.
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Anonymous Coward, 21 Jul 2009 @ 6:43am

It's amazing to think that a guy who pushes "infinite" distribution and knocking down barriers doesn't consider the implications of a better informed and better connected congress.

In 1909, what was the chance that the junior senator from Montana would have a great knowledge of copyright, have available the comments of thousands of people "in the know", deep research, and just about instant access to the leaders of major corporations, artists groups, and free access supporters?

The congressional members are better informed than ever, not just on the direct implications of copyright and patent, but in the longer term financial and social implications of them, and almost without exception, they prefer extension to regression. That should tell you something.
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- Anonymous Coward, 21 Jul 2009 @ 6:49am
  
  Re:
  Congress also cares about one thing, and one thing only.
  
  Money.
  
  Oh, and Affluence. And re-election. They don't honestly care about consumers or long term financial implications. Look at the boondoggles they've been rushing through from both sides of the aisles. Nope, they care about good publicity and corporate sponsership.
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- Richard, 21 Jul 2009 @ 7:08am
  
  Re:
  "The congressional members are better informed than ever"
  
  But they are none the wiser.....
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- Jordan S. (profile), 21 Jul 2009 @ 7:13am
  
  Re:
  The congressional members are better informed than ever, not just on the direct implications of copyright and patent, but in the longer term financial and social implications of them, and almost without exception, they prefer extension to regression. That should tell you something.
  
  That lobbyists are very, very good at their job?
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  - Anonymous Coward, 21 Jul 2009 @ 7:23am
    
    Re: Re:
    The way I was going to phrase it was "Better informed, yes, but by WHO?" After all, when they decide upon an extension or maximizing copy right, they are given EXTENSIVE studies by the lobbyist for studios and labels, and they hear impassioned, heartfelt stories about dead musicians who would want more copy right from the surviving ex-wife and of course, impassioned speeches about how we have to keep Mickey Mouse from being a prono star by keeping him under copyright.
    
    Just because they are better informed does not make them more knowledgeable.
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- Richard, 21 Jul 2009 @ 7:21am
  
  Re:
  "The congressional members are better informed than ever"
  
  Wrong - they have MORE information than ever - but most of it comes from sources that have (or believe erroneously that they have) a financial interest in a particular outcome.
  
  The quantity of information may be larger - but its quality is inferior to what was available in 1909.
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- Anonymous Coward, 21 Jul 2009 @ 10:23am
  
  Re:
  Congressional members have ACCESS to more information doesn't mean they actually take advantage of it.
  
  Congressional members don't actually read the bills they pass, so I doubt they even bother to do a Google or Wikipedia search on the matter beforehand. There's all this great info, but they aren't actually utilizing it.
  
  Why else would no one be interested in supporting the Read The Bills Act? Other than none of them want to actually be informed on what they're voting on. They get their information from the lobbying organizations and on mutually beneficial voting lines where one congressman will support other congressional bills in return for support from those sponsors.
  
  None of that has to do with actual information or better informed congressmen.
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- Derek Kerton (profile), 21 Jul 2009 @ 11:11am
  
  Re:
  That's like saying a young Christian or Muslim boy, immersed in the local culture, and taught all of the rules, beliefs, rituals, and holy writings of his religion is "better informed than ever" about the issue of religion vs. atheism.
  
  Are you really that unfamiliar with the concept of bias? How about moral suasion? Bite the hand that feeds you? Self-interest?
  
  When a senator is very informed about an issue, but most of the information comes from the well-funded, large corporate side of the debate, they come out with strongly-formed, yet biased opinions. This does not lead to better legislation.
  
  No thanks.
  
  Give me Mr. Smith Goes To Washington, or your 'tabula rasa' 1909 junior Senator from the great state of Montana over what we have today!! At least Mr. Smith would be open to both sides of the debate. And, even better, he would deliver his filibuster in a distinct Jimmy Steward warble.
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R. Miles (profile), 21 Jul 2009 @ 6:52am

Interesting read.
I actually saw the article information yesterday, and was surprised at the industry's take on piano players and sheet music sales. It made perfect sense.

Today, though, "sheet music" is a plastic disk/mp3 file, yet industry execs can't seem to make this correlation, but instead, find ways to charge for "public performances" (re: ringtones).

It's really nothing to do with copyright law, but more with stupid business decisions to create a monopoly towards music (discussed in detail as well).

Copyright is just their way of leveraging this idiocy in their favor, hence its abuse.

But nothing will change as long as people continue supporting these decisions through sales. When consumers stop buying, then will real change be made.
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forbugzd, 21 Jul 2009 @ 6:53am

Taxing IP
I have wondered about something along the lines of taxing IP. My idea is to give a free copyright for something like 50 years. After that you can pay to extend it by the decade. It would be fairly expensive to extend, and each decade would cost more than the previous one. The first decade would perhaps cost $10,000, the second decade would be $15,000, the third would be $22,500 and so on. If you still had a profitable product or a major name to protect, it would be worth paying for the extensions. Disney protecting Mickey Mouse and Snow White comes to mind. At least with this system the big companies with major properties would not be so interested in buying politicians who keep extending the copyright on everything.
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ulle53, 21 Jul 2009 @ 6:58am

"The congressional members are better informed than ever, not just on the direct implications of copyright and patent, but in the longer term financial and social implications of them, and almost without exception, they prefer extension to regression. That should tell you something."
That has got to be the most hilarious thing I have read in a long time, awesome sarcasm.
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RD, 21 Jul 2009 @ 7:15am

Fixed
"These days, of course, politicians have been BOUGHT to vote that copyright is a universal good,"

Fixed that for you.
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Jason, 21 Jul 2009 @ 8:02am

Information Overload
I would imagine that Congress critters have a heck of a lot more bills (or at least more pages of bills) today about a lot wider variety of things than they did in 1909. I don't believe they have the ability to be as well informed about any given area where they are passing a law (which does leave questions about whether they should be passing that law or not). That means that they rely more and more on what "experts" tell them, and it's fairly easy to make the call that you should listen to the giants in the field rather than individuals or small groups, especially when the giants have what SOUNDS like a legitimate criticism of those individuals and small groups ("They just want free music", etc).

This is not to say that their is no corruption... certainly some specific people have made a fairly strong showing that they have been paid off. That's just not the only factor, and likely not even the biggest factor (though the fact that anyone who HAS been paid is likely to be more "passionate" about the issue does play a big role, as well).
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- Derek Kerton (profile), 21 Jul 2009 @ 11:30am
  
  Re: Information Overload
  Well, there's:
  
  - payoff with bribes and paid influence, which is definitely illegal. Politicians who get their kitchen remodeled, free flights, etc. provided by some entity are also guilty of accepting bribery.
  
  - payoff with free dinners, parties, influence, meeting famous people, face time. This is not illegal, but over time politicians hear a message repeated to them over and over by people who appear to be their 'friends'. This has a real effect on perception of issues.
  
  - payoff with campaign contributions, which is legal, and used fully. Then also abused by making front organizations to continue contributing beyond the limits - but this is not seen as a big crime.
  
  - payoff simply because of the nature of industry in the home district. For example, Alaskan politicians will always vote in favor of resource extraction over environmental causes because most of the state is employed in that industry. Fat chance that a Hollywood senator will want to scale back copyright. This is not a crime, or even shady...but it does lead to sub-optimal outcomes.
  
  Yep, that and more. All kinds of bribes and influence. Not too much opportunity for the average Joe to be represented. You could write a letter to your rep, and they would have an aid send a form response (maybe the aid will even read it) and add yours to a pile. How many letters would it take to equal influence like the four bullets above?
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bshock, 21 Jul 2009 @ 9:22am

not far enough
I think we were smarter still about copyright laws 1,000 years ago, before they actually existed.

Copyright demonstrably stifles creativity by (a) allowing wealthy, successful artists to rest on their laurels, and (b) preventing lesser-known artists from creating derivative works.
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6, 21 Jul 2009 @ 4:14pm

"how we have to keep Mickey Mouse from being a ... star by keeping him under copyright."

I have some bad news.
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Anonymous Coward, 22 Jul 2009 @ 9:07am

not smarter
just less corrupt
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Rachel, 27 Jul 2009 @ 6:44am

Technologies
"We" may well have been smarter 100 years ago. It's a valid point (for player piano rolls) that they didn't take away from the product being sold (sheet music). But the ease of replication changes this. Ever tried to copy a player piano roll? How about an mp3? There's no related product today (like the sheet music was related to the pp roll), only a very easily copied mp3 file. Without copyright protection, anyone could rip off any piece of music, call it their own, and very easily & inexpensively market it. Different rules are needed for a different society and more advanced technology.
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